Copyright – The Informal Formality

By Conal Thompson

It is a common misconception that copyright in a work needs to be registered in order to be recognised. The truth is that in New Zealand copyright exists as soon as a work is created, and whether or not copyright does exist in a work is determined by a set of rules established by the Copyright Act 1994.

The distinct lack of formalities required by copyright law has increasingly become an issue with the rise (to use a favourite term of journalists and academics) of the “scary internet machine-monster” (okay, I made that one up).

What’s the issue? Take, for instance, a picture that I draw of the “scary internet machine-monster” that I then publish online. From the second that I publish it, copyright exists in that drawing, which is owned by me.

Let’s say I chose not to do any of those things when I published it. This is what many people do (or to put it better, don’t do) when they publish their work online. Such a work is known as an “orphan work” – meaning the owner of copyright is difficult to find or untraceable.

The problem with this is that if my picture became really popular and other people wanted to use it, the lack of information I provide with the picture makes it difficult for those people to contact me and gain my permission to use it.

This won’t prevent the spread of the picture onto other websites that make no money from it – but what if a big-shot clothing manufacturer decided they wanted to pay me to put my drawing onto t-shirts that they sell? Unfortunately for me, that lucrative deal won’t be making its way into my bank account, because I didn’t provide details of who owns the copyright, and the spread of the picture onto a multitude of other websites would have made it virtually impossible for the manufacturer to track down its origin.

If I applied a Creative Commons license to it, however, then it would make it a lot easier for other users to trace its ownership back to me. Say that I wanted my drawing to be able to be shared and easily attributable back to me – I would add a CC BY-NC licence to it, so that others could use it but not make any money from it.

This means I still have the exclusive right to commercially benefit from it, meaning that big-shot clothing manufacturer can still come knocking at my door and I can still earn reward for my work – most of all because this time around, they know where to find me.

Note: In 2013, the Berkeley School of Law hosted a symposium on this very issue, called “Reform(aliz)ing Copyright for the Internet Age”. If you’re interested in the legal and political debate surrounding the establishment of formalities for copyright law then head over there and take a look.

2 Responses to Copyright – The Informal Formality

I think NC makes sense as a compromise for musicians or film-makers for whom the digital facimile is in many ways essentially the same as the original, without the distribution systems of cinema or CD/ record (hard to produce). I’m not sure a graphic on a t-shirt deserves the same compromise, as anyone with an afternoon’s effort can learn to screenprint a t-shirt, and graphics tends to have originals (paintings, sculptures, first prints from the photographer’s darkroom etc) which cannot be digitized, only represented. In this case, an NC clause may be legally defensible, but I’m not sure it’s morally defensible.

I would suggest the graphic artist instead finds a shirt-producer to work with, and sells their version of the shirt with the Artist-Endorsed Mark. They may not get all the sales, but without the popularity created (created at least in part by the “pirate” shirt-printers), there would be no market to have a share of.

I just wanted to add: another advantage of being properly attributed and supported for your work licensed under the Creative Commons license is that anybody who might want to collaborate with you or remix your work into some new fancy piece of art can credit you properly as well! The previous commenter says that an NC clause isn’t morally defensible, under the assumption that anybody who might want to use an artist’s work would be profiting from it directly…but what if, instead, we just get a richer and more innovative artistic community? That seems pretty morally defensible to me. 🙂

Commons Machinery (the company I work for) is really tied up in figuring out how to make Creative Commons licensing and attribution easier, which is why I found this article in the first place. We are SO interested to have more people using CC licenses, because we think it’s better for the global creative community. Thoughts on this?